Burmeister, WIlliam James v Pratt, Gordon Augustin [1978] FCA 17

AUSTRALIAN CAPITAL TERRITORY 5 DISTRICT REGISTRY No.12 of 1977

AN APPEAL from the Supreme Court of the Australian Capital Territory

CONNOR, J. DATE OF ORDER 3 14 March 1978 WHERE MADE t Canberra

THE COURT ORDERS THAT (1) The Appeal be dismissed with costs}

(2) All Orders made by His Honour Mr. Justice Joske be upheld,

AN APPEAL from the Supreme Court of the Australian Capital Territory

Appellant AND ' GORDON AUGUSTIN PRATT Respondent REASONS FOR JUDGMENT SMITHERS,» J. NIMMO, J. 14 March 1978 Canberra

This is an appeal from a decision of Joske J. of the Supreme Court of the Australian Capital Territory reversing a decision of the Chief Stipendiary Magistrate of the Territory who dismissed an application for compensation under the Workmen's Compensation Ordinance 1951 (A.c.T.) brought by the present respondent, The application arose out of an injury sustained by the respondent on 1! December 1975 when a tree fell on him whilst he was working as a tree feller in the Kowen State' Forest in the Territory, The respondent claimed that he was carrying out work for the present appellant at the time and that because he was doing so under a contract to fell trees which he had

entered into with the appellant the relationship between them was by virtue of the provisions of s,6(3A) of the Ordinance that of deemed worker and deemed employer. That relationship, if established, entitled the respondent to compensation under the Ordinance, The appellant denied the existence of any such contract and consequently any such relationship. The only witnesses to give evidence before the Magistrate were the respondent and the appellant, the latter having been called by the respondent. In his judgment His Honour correctly summarised the evidence, save for the necessary substitution of appellant for respondent and vice versa, in the following terms : 'The respondent's evidence before the Magistrate was that commencing in January 1975 he was cutting timber for the appellant's father, Noel Burmeister, in the area of Tumut, He provided the chain saws and fuel for them and his own vehicle and axe and other equipment and all maintenance and received money for the tamber that was carted away, from where it was cut, from Noel Burmeister who was carrying on business as N.S. Burmeister and Son, and cheques drawn in that name were paid to the respondent. This arrangement continued until the end of October or early November 1975. Until then the respondent continued to work for Noel Burmeister. By this time Noel Burmeister's quota in tlhe Tumut area was nearly cut down and respondent was running out of 'work. The relationship between Noel Burmeister and his son the appellant had been an association in business until early 1975 when the association ceased

and the appellant came to Canberra and started in a similar

business there on his own account under the name of W.J.

and M.E, Burmeister, When the timber at Tumut was nearly cut out Noel Burmeister told the respondent that the appellant was a little bit short of logs and asked him whether he feit like going over and cutting timber for the appellant. As the respondent had practically nothing to do, he agreed, Before leaving Tumut the respondent had spoken with the appellant about working for him, going over and cutting for him, coming over and helping out. The appellant knew that the respondent was just about cut out at Tumut. . It was after this conversation with the appellant that Noel Burmeister spoke to the respondent as set out above and Noel Burmeister told him to be over on the Monday morning ready to start. On the Monday the respondent met the appellant at the Kowen State Forest and the latter said to him "Go up and start there" and the respondent says "That was it". The respondent started cutting timber that day in accordance with the usual practice, He was paid by the appellant and the cheque was signed "W.J. and M.E. Burmeister". Payment in the Canberra area was by the tonne not by the cubic metre as in the Tumut area, The respondent did the felling and trimming of the trees and the appellant picked them up in his own truck at various times. The respondent was paid for such timber as got to the mill. He received in all three cheques.from.the appellant signed "W.J. and M.E. Burmeister", The respondent supplied all his own gear, truck, fuel and maintenance for the equipment. His job was to fell the rece, cut off the limbs, measure them up

and cut them into various lengths. Provided he supplied

the timber no one gave him any orders as to what he was to do or anything of that nature. He had to supply a certain amount within a certain time and how and when he did it

was his own business. The appellant gave evidence that

he had determined the rate of payment which he had paid

the respondent and he had shown him where to start, that was all. He did not say anything about how he had to do the job or anything like that. The appellant also said that he knew the respondent was only coming out for a short time until: the appellant's father's operation started

again in the new year, The appellant made no effort to

After considering the evidence given by the respondent and the appellant the Magistrate was not satisfied that 'at the relevant time' the respondent 'was a contractor for the purposes of the Ordinance! and dismissed his claim, Reference to his reasons for judgment indicates that he permitted himself to be influenced by a misunderstanding of the significance of the unreported decision of Fox J. in Guiseppe Nibali v. Canberra Sawmilling Company and the Commonwealth of Australia delivered on 23 April 1968, As a result he approached the case under the impression that the respondent carried the onus of satisfying him not only that there was a contract between the respondent and the appellant with 'reference to the felling of trees but also and with precision of every term of that contract and also, it would seem, the terms of some relationship of the parties to @

the sawmiller to whom the logs of fallen trees would ultimately

be delivered by the appellant. He pointed out that on the

relevant evidence it was 'not possible to obtain a clear view of what were the precise arrangements or the terms of agreement as between the parties' and again '1t is possible....that the (respondent) was a contractor with the sawmiller whose identity cannot with certainty be established and....it is not possible to clearly define with any certainty the exact relationship between the sawmiller and the parties, and the parties inter se'. But there is no suggestion in the evidence that the respondent had any relationship with the sawmiller or that any relationship which the appeldant might have had with the sawmiller was imported in any way or to any extent into the terms of the

agreement between the respondent and the appellant.

It is clear therefore that the learned Magistrate did not properly direct his mand to the crucial question whether there was a contract between parties 'under which the contractor agrees

to fell trees' (see sub-section 6(3A)(a) of the Ordinance).

On appeal Joske J. had no hesitation ian holding that the Magistrate was plainly wrong in his conclusion, On reviewing the evidence given before the Magistrate the learned Judge held that there was such a contractual relationship between the

The answer to the crucial' question to which the Magistrate did not properly direct his mind depended upon whether or not having regard to the knowledge of each party of the circumstances of

the other, their conduct and their conversations, the proper

inference to be drawn was that the respondent did agree to fell

It is clear that the appellant knew that the respondent was a man whose occupation was that of felling trees. He knew that the respondent had worked regularly in the ordinary course of that occupation as a tree feller at Tumut for his father Noel Burmeister. He knew that the work at Tumut was running out for the time being and that the respondent was available for other work before resuming at Tumut. It was in these circumstances that the conversations referred to in the evidence took place. The situation was that the respondent went to the Kowen State Forést where the trees to be cut for the appellant were situated after a conversation in which the appellant had

said to the respondent 'You might have to come over and help us

It is to be gathered from the evidence that the appellant told the respondent of the class of timber he was cutting and that 'the chaps they had felling it, they sort of couldn't keep it up!, On Monday morning of 10 November 1975 the respondent met the appellant at the Kowen State Forest and the appellant said, 'Well, go up and start up there'. The respondent worked at felling trees for three weeks and was paid each Friday at a rate worked out by the tonne. It was on Monday 1 December after the

respondent had started work at his normal time that he was

anjured.cn . In cross-examination the respondent was asked, 'And you say your job....was to fell the trees, is that right?! The answer was,

é 'Yes', Later he was asked, 'And of course in this job, I

suppose, provided that you supplied the timber no one gave you

any orders of what you were to do or anything of that nature?! The answer was, 'No, I had to supply a certain amount within a certain time', He was asked, 'How you did it was your own business?! The answer was, 'Yes, that's right, and when I did it', The evidence of the appellant disclosed that before tho respondent came over to his forest 'we just talked about everything about the job. Falling rate - what the falling rate should be....we just talked about it the way we've always talked about our work',. He said that the respondent arrived at a date arranged by his father and that he was expecting him when he arrived, Asked what the arrangement with the respondent was in connection with his felling of trees he said, 'I knew he was only coming over here for a short time, We were invited over here to shift a certain amount of timber and it kept on getting bigger and bigger - he wanted us to shift more and more. The fellers I had could not put enough timber on the ground for us, so it was suggested or it came up somehow or other that Mr, Pratt might be interested in coming over here, or we said something to him - I don't know how it actually came up. We knew he was only coming over for a short period of time until my father's operation started again this year then he was going back - or he only came over - ~ he'd be back in time for Christmas, stay there, and start on my father's operation

It is therefore manifest that the respondent had been asked to

come to the appellant 'to help the appellant out' in relation a

to felling trees and that the appellant accepted that

The respondent's working habits being known, there being a price arranged and a contemplated duration of the time during which the respondent would work with the appellant, a clear inference arose that the respondent agreed to fell trees for the appellant working according to his customary procedures at

There was no uncertainty affecting the agreement of a kind which might go to the very existence of the contract, There was evidence that the respondent had agreed to do 'ta certain amount within a certain time', This is not spelt out with further particularity but it is not denied, But in any event having regard to the clrcumstances the very agreement to go over and work 1amplied that the respondent would work felling trees for the contemplated period and would work according to his accustomed procedures, Certainly he agreed to fell trees.

No questions of credibility of the witnesses arose it being

conceded that both were endeavouring to tell the truth,

We are therefore satisfied that the evidence clearly establishes that there was a contract between the appellant and the respondent under which the respondent contractor was felling trees for the appellant at the time he was injured,

Before this Courtsenior counsel for the appellant contended that on its true construction s.6(3A) has application only to

cases where there is 3 legally binding agreement which imposes on 'the contractor' an abligation to do one or more of the

things referred to in the sub-section, in this case to fell

trees, In support of his contention he relied on Collins v. Commissioner for Railways (1933) 7 W.C.R. (N.S.W.) 171. He further contended that in this case there was no such agreement between the respondent and the appellant but merely an arrangement under which the respondent could if he wished, but without being under any legal obligation to do so, fell trees for the appellant in which event the appellant would pay him for his work at the rate agreed upon by them. Such an arrangement counsel rightly argued would be outside the

We reject counsel's contention because in our opinion, for the reasons we have given, there was at the material time not a

mere arrangement between the parties but a legally binding agreement. Under its terms the respondent was obliged to fell trees in the Kowen State Forest for the appellant for the contemplated period and at an agreed rate of remuneration. Because of the existence of that agreement this case is distinguishable from the Collins Case where the New South Wales Supreme Court held that no agreement of the kind contemplated by the relevant statutory provision, which was in material respects similar to s.6(3A), existed between the parties. In the present case the respondent was injured while performing his part of has agreement with the appellant and the relationship between him and thé 'appellant being, in our view, that of deemed worker and deemed employer for the purposes of the Ordinance he is, as Joske J. held, Fntitied to compensation under the relevant provisions of the Ordinance, In upholding the appeal

from the Magistrate's decision His Honour ordered the matter be

returned to the Magistrate for determination by him of the compensation to be awarded to the respondent. Before this Court a question arose as to whether His Honour had power to make that Order but it is umnecessary for us to consider it for

the parties have consented to offect being given to that Order.

It follows that the Court upholds all the Orders made by His

fds Vi dai" fl te a ur Abarel tae Sic dohw Nimaco |

IN THE MATTER of AN APPEAL {rom the Supreme Court of the Australian Capital Territory

Respondent REASONS FOR JUDGMENT CONNOR, J. 14 March 1978 ' Canberra

This 1s an appeal from the Supreme Court of the Australian Capital Territory which reversed a decision of the Court of Petty Sessions at Canberra dismissing the respondent's claim for worker's compensation, The respondent is a timber cutter and brought the Claim against the appellant, who 1s a timber merchant, for compensation for injuries which he suffered on 1 December 1975 when he was struck by a falling tree in the Kowen State Forest in the Australian Capital Territory. The respondent claims that the appellant, in the course of or for the purpose of his trade or

business as a timber merchant, entered into a contract with him

' under which he agreed to carry out for the appellant the service of logging, which includes the felling of timber. He claim, thit

' he was thereby decmed to be working under a contract of service

sat with the appellant and that the appellant was deemed to be his

. employer under s.6(3A) of the Workmen's Compensation Ordinance

1951-1974 (A.C.T.). The appellant challenges this assertion and

the present appcal 1s concerned solely with the resolution of

this issue. Section 6(3A), insofar as it 1s relevant to this matter

' (a) a person (in this sub-section referred to as "the re principal") in the course of or for the purpose " of his trade or business enters into a contract with any other person or persons (in this suh- section referred to as "the contractor") under which the contractor agrees -

(iv) to carry cut for the principal one or more of the services of logging (including felling, crosscutting, snigging, loading, carting,

bundling and debarking), cleat ing of timber, preparing land for planting tiees, planting

(b) the contractor does not either sublet the contract or employ workers, or although employing workers, actually performs any part of the work himself,

the contractor shall for the purpose of this Ordinance, be deemed to be working under a contract of service with

an employer and the principal shall be deemed to be the ' employer of the contractor."

It was not disputed that the appellant, if he did enter into such a contract, did so in the course of or for the purpose of his trade or business as a timber merchant. Similarly in regard to paragraph (b) there was no allegation 'that* the respondent sublet the contract or employed workers. The relevant facts 'are as follows. The respondent was ; Doo

aged 39 when the accident happened 'and from the age of about

fifteen he had been a timber cutter in the Tumut area in the State

of New South Wales. For many years he had worked in that capacity for a timber logger named Noel Burmeister, who 15 the father of thy appellant and who carried on his timber logging activittes at Fumut

under the name of N.S. Burmeister and Sons. It appears that N.S. Burmeister and Sons had an annual quota of timber available for felling in the Tumut area and that each year this quota was general! exhausted about the month of November. There was then no further felling work with N.S. Burmeister and Sons available to the respondent until January of the following year. In the interim the respondent habitually took his holidays. As an indication of the extent of the timber felling work which the respondent pecformed 1t may be mentioned that for the year ended 30 June 1971 he earned $14,985. "For the year ended 30 June 1975 he carned $19,714. In the next five months before his injury he earned $10,179. Jt was not suggested that he had any other occupation. The respondent provided and maintained his own chain saws and axes. He used his own truck to get himself and his equipment to and from work. lic also provided the fuel for the truck and the chain saws.

In January 1975, affer his usual-break from work, the respondent resumed cutting timber in Tumut for N.S. Burmeister and Sons. The appellant William Burmeister was associated with the business of N.S. Burmeister and Sons until some time during 1975. The respondent had then known him for something like ten years. During 1975 the appellant left Tumut and came to Canberra and, as far as the respondent was aware, William Burmeister's business association with N.S. Burmeister and Sons ceased. The respondent, however, continued to work for N.S. Burmeister and Sons until late October when, as usual, the respondent had cut most of

that firm's quota of timber. The appellant and the respondent had

earlier discussed over a drink in a hotel in Tumut the prospect of

the respondent working in Canberra for the appellant. The responden

said "We had talked about it a little bit before, you know, 1f they got stuck, you know, would I go over and cut some for them". The appellant said that he mentioned to the i1espondent in the course of this discussion that the cutting rate in Canberra was $1.15 per tone In Tumut the respondent had been paid by the cubic metre. 'Not long after this conversation and at a time when the quota of N.S. Burmeister and Sons was almost a11 cut, Noe] Burmeister told the respondent that the appellant was getting pretty short of logs and he said "Do you feel like going over and cutting some timber for him?", The respondent, because he had practically nothing to do, said to Noel Burmeister "Yes, why not". There was no further discussion at that stage between the appellant and the respondent. As the respondent said in evidence "the talking was done between Noel and Bill. I was just told to be over there on the Monday morning ready to start". The appellant said that several nights before the respondent came to Canberra his father rang him and asked him 1f it would be alright for the respondent to come over and that the appellant said it would be.

lt was in these circumstances that the respondent turned up with his truck and equipment at the Kowen State Forest on the morning of Monday, 11 November 1975. He was met by the appellant who said that he was expecting him. They knew cach other well. The respondent was an experienced faller. The appellant merely said to him "Well, go up and start up there"; and, as the respondent said in evidence, "That was it". The appellant, on being asked "And when Mr. Pratt arrived you gave him a job of falling trees", said "That's right, yes''. The respondent began cutting timber as he had always done. The work he did consisted of felling and

trimming trees which he then measured and cut into various lengths.

.
They were 'then collected and placed on the appellant's truck and

taken to a sawmill. He worked throughout that week beginniny at

8 a.m. except on Friday when he began at 7 a.m. On the ITreday

afternoon the appellant gave him a cheque fo1 $288.42 sipnel bh. Wo. and M.8. Burmeister, the latter being William Burmeister's wife.

He'was paid at the agreed rate of $1.15 per tonne of timber. fhe

respondent then went back to Tumut for the weekend. [he travelling time from the Kowen State Torest to Tumut was about two and a half hours. The respondent returned to work on the following Monday. He worked until Thursday afternoon when he went back to Tumut in

. ; order to attend to some repairs to his! truch. Before he left for

Tumut the appellant gave him a similar cheque for $3660.79. He was

back at work in the Kowen State Forest on the following Monday and

worked through tiil about lunchtime on the Friday when he was giver ood

a further cheque for $295.81. He then returned to work on the following Monduy starting at about 7.30 a.m. [t was at about noon of that day that he received the injury the subject of the claim. Following the accident he was paid $219.46 in respect of timber Which he had cut before his accident. If his total earnings while working for the appellant are allocated to a three week period they average about $390 per week. 'His average weekly earnings during the previous financial year with N.S. Burmeister and Sons had been about $380 per week. It appears that the respondent was working fulltime at cutting timber for the appellant.

At the hearing before the learned Chicf Magistrate, who constituted the Court of Petty Sessions, the appellant called no evidence. The respondent was then given leave to re-open his case, on terms as to costs, and he called the appellant. There was no conflict between the evidence of the respondent and the evidence of the appellant. It 1s apparent from the reasons of the learned Chief

Magistrate that he was not troubled by any question relating to the

credibility of the testamony placed before him. The task to which

he addressed himself was the analysis of facts established hy

undisputed evidence and the proper construction to be place! upon them. 'the learned Chief Magistrate concluded that it was not possible to obtain a clear view of what were the precise ariaungements or the terms of the agreement between the parties inter se and between the parties and the sawmiller or what part was played by

Mr. Noel Burmeister in effecting a transfer of the respondent from tree cutting at Tumut to carrying out that task in the howen State Forest. Consequently the learned Chief Magistrate was not satisfied that the respondent had established that he was at the relevant time a contractor for the purpose of the Ordinance. He accordingly dismissed the application.

In the Supreme Court of the Australian Capital Territory Joske J. said that 2n his opinion there clearly was a contract between the present respondent and the present appellant to fell timber and that the present respondent's case came clearly within s.6(3A).

The facts, as set out above, demonstrate in my opinion that the view of Joske J. was plainly correct and the view of the leained Chief Magistrate was plainly incorrect. As Joske J. observed, the evidence is all one way. There 1s no evidence of any contractual relationship between the respondent and the sawmiller. The basal facts are that a timber merchant offered to pay a timber cutter $1.15 per tonne for cutting timber in a particular locality. The timber cutter accepted this offer by coming to the designated locality and cutting a substantial amount of timber. The timber merchant took the timber and paid the timber cutter for it at the agreed rate. This, in classic terms of offer, acceptance and performance, points conclusively to the existence of a contract

between them. The contract, looked at from the respondent's point

of view, falls naturally enough within the description of a contract

. ' | under which he agreed to carry out for the appellant the service

of logging and is thus within the ambit of s.6(3A)(a) (iv) of the Ordinance. This view of the matter 15 strengthened when, as lire,

; me Before this court'Mr. Foster, Q.C. for the appellant, het! 'submitted that there was no contract to fell timber entered into by

'the appellant with the respondent within the meaning of s.6(3A) because the respondent had no obligation to cut any timber if he

did not choose to do so. For this proposition he relied upon

Collins v. Commissioner For Railways (1933) 7 W.C.R. (N.S.W.) 171,

a decision of the Full Court of the Supreme Court of New South Wales That case was concerned with a claim under $.6(5) of the Workers Compensation Act 1926-1929 (N.S.W.) which deemed a contractor to be a worker employed by a principal if the principal in the course of or for the purposes of his trade or business enters into a contract with the contractor under which the-contractor agrees "to supply sleepers ....". The Railway Commissioners issued on request to the applicant a card indicating that he was a sleeper-getter of whom the department approved. The 'applicant was not required to supply any minimum number of sleepers. The applicant was injured while cutting timber for the sleepers. Ha1vey A.C.J., with whom James and Halse Rogers JJ. agreed, said at p.181:-

"On the face of things, it is a simple case in which

whom sleepers, if they are tendered, will be accepted,

and the sleeper-getter never imagines that on receipt

of such a card he was under any obligation to cut a

single sleeper". Consequently it was held that the applicant was not a contractor who had agreed to supply sleepers to the department and his claim failed. Mr. Foster submitted that by parity of reasoning the

respondent in this case was not under any obligation to the appellan

to Fell a single tree and he had therefore never entered into a

contract with the appellant to carry out for the appellant the

service of logging. : | itt will suffice to consider one answer to this submission Ant independent contractor may have an arrangenent whereby a

. 4 principal agrees to remunerate! hin at an agreed rate 1f he carries

out specified work for the principal. He may have no obligation to carry out any work at all; and he may be at liberty to carry out such work as he does at a time and an a manner of his own chocsing. "Tt is my view, however, that the contractor, during any period in

which he is actually carrying out the work, 1s doing so pursuant to act with the principal. If, Collins' Case supra, on its

" proper construction, holds otherwise, T am not with respect

For these reasons I consider that the appeal shvuld be

dismissed, I agree in the orders proposed by Smithers J. and

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